State says Trenton mayor cannot overrule council on appointment bans

TRENTON — Mayor Tony Mack does not have the power to hire two department directors and two municipal court judges whose appointments were rejected by city council last week, two state agencies said yesterday.

Pointing to law and state regulations, both the Department of Community Affairs (DCA) and the Judiciary rejected Mack’s argument that he could install his nominees on an acting basis unilaterally and over council’s objections.

“The mayor may not hire people without our approval,” said Lisa Ryan, a DCA spokeswoman.

At issue are positions for state police Lt. Ismael Rivera, whom Mack hoped to name police director, and Montclair engineer Kimberli Craft, the mayor’s candidate for public works head. Debra Gelson and Rodney Thompson were picked by Mack to take on part-time municipal judgeships.

Amid accusations of a tainted process that involved Business Administrator Eric Berry tallying legislators’ votes and passing them on to Council President Kathy McBride, the governing body voted on Thursday to eliminate Rivera, Craft, Gelson, and Thompson from future consideration.

In response, Mack declared on Friday that he would appoint the four as acting directors and judges, hoping then the council would reconsider.

His decision on the judges appears to run afoul of state law, said Tamara Kendig, a spokeswoman for the Judiciary.

Under the statute, the assignment judge is the person who has authority to name judges of municipal courts,” Kendig said yesterday.

This means Superior Court Judge Linda Feinberg has the sole power to appoint a judge to Trenton’s court, she said.

“This information has already been communicated to the mayor’s office,” Kendig said.
Mack said he did not know of the communication.

“You’d have to go through the legal department for that; I did not see that,” he said last night.

“We have two judges working in an acting capacity. They haven’t been appointed,” he added. “So that theory’s out the window.”

The statement about Rivera brought on a letter sent yesterday, addressed to Mack, from Thomas Neff, DCA’s director of the Division of Local Government Services (DLGS).

“This letter was written as a result of a recent news article which noted your intent to appoint a police director, even though city council overwhelmingly rejected the nomination and despite not having received DLGS approval of the hire,” Neff wrote. “Please be aware that it is highly unlikely DLGS will ever give formal approval to hire any candidate for such an important position unless and until council advice and consent has been received.”

City hires made after Dec. 13 of last year require approval from the state as a condition of Trenton’s acceptance of millions in transitional aid. Neff reminds Mack of that fact in the letter, telling him all candidates for employment should not begin work prior to written approval from his office.

“We strongly recommend that you solicit new candidates for police director at this time,” Neff wrote.

Mack said he had not received the letter. After being read the text of the letter over the phone, Mack continued to insist his reading of the law is correct.

“I haven’t spoken to Tom, but I don’t know what his idea is based on,” Mack said. “It’s real clear.”

“The law is clear; the law on appointing acting department heads is clear,” he said.
His decision to appoint Rivera remained unchanged, he said.

“Until our law department says something otherwise, the law is clear,” Mack repeated.

The mayor suggested that Berry would have knowledge of the proper procedure, and said he would tell his business administrator to contact The Times. Berry had not called back as of press time.

Rivera did not respond to a message left on his cell phone yesterday morning.

South Ward Councilman George Muschal felt the DCA letter settled the matter about whom the mayor could appoint.

“I’m happy for DCA’s decision, now the city can go forward,” he said. “The right decision was made.”